International Joint Commission
June 30, 2005
DRAFT GREAT LAKES BASIN AGREEMENT IS BASED ON PRECAUTION
[RPR Introduction: This draft Great Lakes Basin Agreement incorporates
the precautionary principle. If citizens turn out for the public
meetings scheduled around the Great lakes in October and November (see
related story in this issue of Rachel's Precaution Reporter), they can
help assure that precaution remains a central foundation of this Great
Lakes Agreement, which would be a major step forward for precaution.
--RPR Editors.]
GREAT LAKES BASIN SUSTAINABLE WATER RESOURCES AGREEMENT
ENTENTE SUR LES RESSOURCES EN EAUX DURABLES DU BASSIN DES
GRANDS LACS
The State of Illinois,
The State of Indiana,
The State of Michigan,
The State of Minnesota,
The State of New York,
The State of Ohio,
The Province of Ontario,
The Commonwealth of Pennsylvania,
The Government of Quebec,
The State of Wisconsin,
PREAMBLE
Recognizing that,
The Waters of the Great Lakes Basin are a shared public treasure and
the States and Provinces as stewards have a shared duty to protect,
conserve and manage these renewable but finite Waters;
These Waters are interconnected and form a single hydrologic system;
Protecting, conserving, restoring, and improving these Waters is the
foundation of Water resource management in the Great Lakes Basin and
essential to maintaining the integrity of the Great Lakes Basin
ecosystem;
Managing to conserve and restore these Waters will improve them as
well as the Water Dependent Natural Resources of the Great Lakes
Basin;
The States and Provinces must balance economic development, social
development and environmental protection as interdependent and
mutually reinforcing pillars of sustainable development;
Even though there has been significant progress in restoring and
improving the health of the Great Lakes Basin ecosystem, the Waters
and Water Dependent Natural Resources of the Great Lakes Basin remain
at risk;
In light of possible variations in climate conditions and the
potential cumulative effects of demands that may be placed on the
Waters of the Great Lakes Basin, the States and Provinces must act
with precaution to ensure the protection and conservation of the
Waters and Water Dependent Natural Resources of the Great Lakes Basin
for future generations;
Where there are threats of serious or irreversible damage, lack of
full scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation; and,
Sustainable development and harmony with nature and among neighbours
require cooperative arrangements for the development and
implementation of watershed protection approaches in the Great Lakes
Basin.
Reaffirming,
The principles and findings of the Great Lakes Charter and the
commitments and directives of the Great Lakes Charter Annex 2001;
Acknowledging,
Nothing in this agreement is intended to abrogate or derogate from the
protection provided for the existing aboriginal or treaty rights of
aboriginal peoples in Ontario and Quebec as recognized and affirmed by
section 35 of the Constitution Act, 1982 or from the treaty rights or
rights held by any tribe recognized by the federal government of the
United States based upon its status as a tribe recognized by the
federal government of the United States, and acknowledging the
commitment of these peoples to preserve and protect the waters of the
Great Lake Basin;
The continuing and abiding roles of the United States and Canadian
federal governments under the Boundary Waters Treaty of 1909 and other
applicable international agreements, that continue unaffected by this
agreement, and the valuable contribution of the International Joint
Commission; and,
Effective management is dependent upon all Parties acting in a
continuing spirit of comity and mutual cooperation.
Agree as follows:
CHAPTER I
GENERAL PROVISIONS
ARTICLE 100
OBJECTIVES
1. The objectives of this Agreement are:
a. To facilitate consistent approaches to Water management across
the Basin to protect, conserve, restore, improve and efficiently and
effectively manage the Waters and Water Dependent Natural Resources of
the Great Lakes Basin;
b.
To promote co-operation among the Parties by providing common
and regional mechanisms to evaluate Proposals to Withdraw
Water;
c.
To create a co-operative arrangement regarding Water management that
provides tools for shared future challenges;
d.
To retain State and Provincial authority within the Great Lakes Basin
under appropriate arrangements for intergovernmental cooperation and
consultation;
e.
To facilitate the exchange of data, strengthen the scientific
information upon which decisions are made, and engage in consultation
on the potential effects of Withdrawals and losses on the Waters and
Water Dependent Natural Resources of the Great Lakes Basin; and,
f.
To promote a precautionary approach to prevent significant adverse
impacts of
Withdrawals and losses on the Great Lakes Basin's ecosystems and
watersheds.
2. The Parties shall interpret and apply the provisions of this
Agreement to achieve these objectives.
ARTICLE 101
SCOPE OF APPLICATION
This Agreement applies to the Waters of the Great Lakes Basin within
the Parties' territorial boundaries.
ARTICLE 102
GENERAL COMMITMENT
Each Party to this Agreement shall seek to adopt and implement
Measures that may be required to give effect to the commitments
embodied within this Agreement.
ARTICLE 103
GENERAL DEFINITIONS In this Agreement,
"Agreement" means this Agreement.
"Applicant" means a Person who is required to submit a Proposal that
is subject to management and regulation under this Agreement.
"Application" has a corresponding meaning.
"Basin" or "Great Lakes Basin" means the watershed of the Great Lakes
and the St. Lawrence River upstream from Trois-Rivieres, Quebec within
the jurisdiction of the Parties.
"Community within a Straddling County" means any incorporated city,
town or the equivalent thereof, that is located outside the Basin but
wholly within a County that lies partly within the Basin and that is
not a Straddling Community.
"Compact" means the Great Lakes Basin Water Resources Compact.
"Consumptive Use" means that portion of Water Withdrawn or withheld
from the Basin that is lost or otherwise not returned to the Basin due
to evaporation, incorporation into products, or other processes.
"County" means the largest territorial division for local government
in a State. In Quebec, county means a regional county municipality
(municipalite regionale de comte -- MRC). The Counties shall be
defined
as of the signing date of this Agreement.
"Cumulative Impacts" mean the impact on the Great Lakes Basin
Ecosystem that results from incremental effects of all aspects of a
Withdrawal in addition to other past, present, and reasonably
foreseeable future Withdrawals regardless of who undertakes the other
Withdrawals. Cumulative Impacts can result from individually minor but
collectively significant Withdrawals taking place over a period of
time.
"Diversion" means a transfer of Water from the Basin into another
watershed, or from the watershed of one of the Great Lakes into that
of another. "Divert" has a corresponding meaning.
"Environmentally Sound and Economically Feasible Water Conservation
Measures" mean any beneficial reduction in Water loss, waste, or use
accomplished by the implementation of Water management practices and
Water efficiency measures. Water management practices and Water
efficiency measures must be economically feasible based on a cost-
benefit analysis that includes avoided environmental and economic
costs.
"Exception" means a transfer of Water that is excepted under Article
201 from the prohibition against Diversions.
"Great Lakes Basin Ecosystem" means the interacting components of air,
land, Water and living organisms, including humankind, within the
Basin.
"Intra-Basin Transfer" means the transfer of Water from the watershed
of one of the Great Lakes into the watershed of another Great Lake.
"Manual" means the procedures manual established under this Agreement.
"Measures" means any legislation, law, regulation, directive,
requirement, guideline, program, policy, administrative practice or
other procedure.
"New or Increased Diversion" means a new Diversion, an increase in an
existing Diversion, or the alteration of an existing Withdrawal so
that it becomes a Diversion.
"New or Increased Withdrawal or Consumptive Use" means a new
Withdrawal or Consumptive Use or increase in existing Withdrawal or
Consumptive Use.
"Originating Party" means the Party within whose jurisdiction an
Application is made. "Party" means a State or Province that enters
into this Agreement.
"Person" means a human being or a legal person, including a government
or a non-governmental organization, including any scientific,
professional, business, non-profit, or public interest organization or
association that is neither affiliated with, nor under the direction
of a government.
"Proposal" means a prospective Withdrawal, Diversion or Consumptive
Use of Water that is subject to this Agreement.
"Province" means Ontario or Quebec.
"Regional Body" means the Great Lakes Water Resources Regional Body
established by this Agreement.
"Regional Review" means the collective review by all Parties in
accordance with this Agreement.
"Return flow" means the remaining portion of Water Withdrawn which
returns naturally or is returned to the Source Watershed after use and
thus becomes available for further use in the Basin.
"Source Watershed" means the watershed from which a Withdrawal
originates. If Water is Withdrawn directly from a Great Lake or from
the St. Lawrence River, then the Source Watershed shall be considered
to be the watershed of that Great Lake or the watershed of the St.
Lawrence River, respectively. If Water is Withdrawn from the watershed
of a stream that is a direct tributary to a Great Lake or a direct
tributary to the St. Lawrence River, then the Source Watershed shall
be considered to be the watershed of that Great Lake or the watershed
of the St. Lawrence River, respectively, with a preference to the
direct tributary stream watershed from which it was Withdrawn.
"Standard" means the Decision-Making Standard established by this
Agreement.
"State" means one of the States of Illinois, Indiana, Michigan,
Minnesota, New York, Ohio or Wisconsin or the Commonwealth of
Pennsylvania.
"Straddling Community" means any incorporated city, town or the
equivalent thereof whose corporate boundary existing as of the date
that paragraph 2 of Article 710 comes into force, is partly within the
Basin or partly within two Great Lakes watersheds.
"Technical review" means a detailed review conducted to determine
whether or not a Proposal that requires Regional Review under this
Agreement meets the Standard, following procedures and guidelines as
set out in this Agreement and the Manual
"Water" means ground or surface Water contained within the Basin.
"Water Dependent Natural Resources" mean the interacting components of
land, Water and living organisms affected by the Waters of the Basin.
"Waters of the Basin or Basin Water" means the Great Lakes and all
streams, rivers, lakes, connecting channels and other bodies of Water,
including tributary groundwater, within the Basin.
"Withdrawal" means the taking of Water from surface Water or
groundwater. "Withdraw" has a corresponding meaning.
CHAPTER TWO
PROHIBITION OF DIVERSIONS, THE STANDARD, WITHDRAWALS AND
EXCEPTIONS
ARTICLE 200
PROHIBITION OF DIVERSIONS
AND MANAGEMENT OF WITHDRAWALS
1. The Parties shall adopt and implement Measures to prohibit New
or Increased Diversions, except as provided for in this Agreement.
2.
The Parties shall adopt and implement Measures to manage
Exceptions in accordance with this Agreement.
3.
The Parties shall adopt and implement Measures to manage Withdrawals
and Consumptive Uses in accordance with this Agreement.
ARTICLE 201
EXCEPTIONS TO THE PROHIBITION OF DIVERSIONS Straddling Communities
1. A Proposal to transfer Water to an area within a Straddling
Community shall be excepted from the prohibition against Diversions
and managed by the Originating Party as a Withdrawal and Consumptive
Use under the provisions of this Agreement, including but not limited
to those provisions related to the requirement to meet the
Standard and undergo Regional Review, provided that, regardless of the
volume of Water transferred:
a. All the Water so transferred shall be used solely for public
water supply purposes; and,
b.
The Return Flow required for any such transferred Water shall
be to the Source Watershed, not include any Water from outside
the Basin and meet all applicable Water quality standards.
Intra-Basin Transfers
2. A Proposal for an Intra-Basin Transfer that would be considered a
Diversion under
this Agreement, and not already excepted pursuant to paragraph 1 of
this Article,
shall be excepted from the prohibition against Diversions, provided
that:
a. If the Proposal results from a New or Increased Withdrawal
less than 100,000 gallons per day (379,000 litres per day) average
over any 90-day period, the Proposal shall be subject to management
and regulation at the discretion of the Originating Party.
b.
If the Proposal results from a New or Increased Withdrawal
100,000 gallons per day (379,000 litres per day) or greater
average over any 90-day period and if the Consumptive Use
resulting from the Withdrawal is less than 5 million gallons
per day (19 million litres per day) average over any 90-day
period:
i. The Proposal shall meet the Standard and be subject to
management and regulation by the Originating Party;
ii.
The Return Flow requirements of the Standard shall be met,
recognizing that the Return Flow may be to another Great Lake
watershed rather than the Source Watershed. The Return Flow
shall not include any water from outside the Basin, and shall
meet all applicable Water quality standards;
iii.
The Applicant shall demonstrate that there is no reasonable water
supply
alternative within the Great Lake watershed to which the Water will be
transferred, including conservation of existing water supplies; and,
i.The Originating Party shall provide notice to the other Parties
prior to making
any decision with respect to the Proposal.
c.If the Proposal results in a New or Increased Consumptive Use 5
million gallons per day (19 million litres per day) or greater average
over any 90-day period:
i.The Proposal shall be subject to management and regulation by the
Originating Party and shall meet the Standard, ensure that the Return
Flow
shall be to the Source Watershed, shall not include any water from
outside the
Basin, and shall meet all applicable water quality standards;
i.The Applicant shall demonstrate that there is no reasonable water
supply alternative within the Great Lake watershed to which the Water
will be transferred, including conservation of existing water
supplies;
ii.
The Proposal undergoes Regional Review; and,
iii.
If the Originating Party is a State, the Proposal is approved pursuant
to the Compact.
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Straddling Counties
3.A Proposal to transfer Water to a Community within a Straddling
County that would be considered a Diversion under this Agreement shall
be excepted from the prohibition against Diversions, provided that it
satisfies all of the following conditions:
a.The Water shall be used solely for the public water supply purposes
of a community that is without adequate supplies of potable water.
b.
The Proposal meets the Standard, with particular emphasis upon
ensuring that:
i.The Return Flow shall be to the Source Watershed, and shall not
include any water from outside the Basin;
ii.
The Return Flow meets all applicable water quality standards.
c.The Proposal shall be subject to management and regulation by the
Originating Party, regardless of its size.
d.
There is no reasonable water supply alternative within the basin in
which the community is located, including conservation of existing
water supplies.
e.
A precautionary approach shall be used in determining whether or not
the Proposal meets the conditions for this exception. This exception
should not be authorized unless it can be shown that it will not
endanger the integrity of the Great Lakes Basin Ecosystem.
f.
The Proposal undergoes Regional Review.
g.
If the Originating Party is a State, the Proposal is approved pursuant
to the Compact.
Review of Article
4.The Parties shall evaluate this Article in the context of the
periodic cumulative impact assessment as described in Article 209.
ARTICLE 202
IMPLEMENTATION OF THE STANDARD
1.The Parties shall seek to adopt and implement Measures establishing
the Standard. The Standard is one of the means by which the Parties
will together protect, conserve, restore, improve and manage the
Waters of the Basin.
2.
The Standard is a minimum Standard. The Parties may implement
Measures that are more restrictive than the requirements of
this Agreement. Although a Proposal may meet the Standard, it
may not be approved under the laws of the Originating Party if
that Party has implemented more restrictive Measures.
3.
When fully implemented, this Agreement will lead to Water Withdrawal
management systems that are consistent in their fundamentals within
the Basin.
ARTICLE 203
THE DECISION-MAKING STANDARD
The following criteria constitute the Standard:
1. The need for all or part of the proposed Withdrawal, Consumptive
Use or Exception cannot be reasonably avoided through the efficient
use and conservation of existing water supplies; and,
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2. The Withdrawal, Consumptive Use or Exception shall be limited
to quantities that are considered reasonable for the purposes for
which it is proposed; and,
3. All Water Withdrawn from the Basin shall be returned
to the Source Watershed less an allowance for Consumptive Use of the
applicable water use sector. No water other than Basin Water shall be
used in the Return Flow; and,
4. The Withdrawal, Consumptive Use or Exception shall be
implemented so as to ensure that it shall result in no significant
individual or cumulative adverse impacts to the quantity or quality of
the Waters and Water Dependent Natural Resources of the Basin with
consideration given to the potential Cumulative Impacts of any
precedent-setting consequences associated with the Proposal; and,
5.
The Withdrawal, Consumptive Use or Exception shall be implemented so
as to incorporate Environmentally Sound and Economically Feasible
Water Conservation Measures to minimize Water Withdrawals or
Consumptive Use; and,
6.
The Withdrawal, Consumptive Use or Exception shall be implemented so
as to ensure that it is in compliance with all applicable municipal,
State, Provincial and federal laws as well as regional interstate,
inter-provincial and international agreements, including the Boundary
Waters Treaty of 1909.
7.
For an Exception which is subject to this Standard, all applicable
criteria in Article 201 have also been met.
ARTICLE 204
PROPOSALS SUBJECT TO REGIONAL REVIEW
1.Regional Review as outlined in Chapter 5 applies to a Proposal for
any New or Increased Consumptive Use of 5 million gallons per day (19
million litres per day) or greater average in any 90-day period and
any Exception requiring Regional Review under Article 201.
2.The Proposal may be approved by the Originating Party thereafter
only if it meets the Standard.
ARTICLE 205
PROPOSALS SUBJECT TO MANAGEMENT AND REGULATION
1.Any Proposal for a new or increased Withdrawal 100,000 gallons per
day (379,000 litres per day) or greater average in any 90-day period
shall be managed and regulated by the Originating Party.
2.
The Proposal may be approved by the Originating Party thereafter only
if it meets the Standard.
ARTICLE 206
PROCEDURES MANUAL
The Procedures Manual (Manual), is a guide for the implementation of
the Standard and in particular the review of a Proposal and the
preparation of an Application. It also provides guidance on the review
of the Parties' Water management programs. The Manual is part of the
Agreement and is attached as Appendix 1.
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ARTICLE 207
DETERMINATION OF WHETHER THE STANDARD APPLIES Determining New or
Increased Diversions, Consumptive Uses or Withdrawals
1. To establish a baseline for determining whether a Proposal is
a New or Increased
Diversion, Consumptive Use or Withdrawal, each Party shall develop
either or both
of the following lists for their jurisdiction:
a. A list of existing Water Withdrawal approvals.
b.
A list of the capacity of existing systems. The capacity of the
existing systems should be presented in terms of Withdrawal capacity,
treatment capacity, distribution capacity, or other capacity limiting
factors. The capacity of the existing systems must represent the state
of the systems on the effective date of Paragraph 2 of Article 710.
Existing capacity determinations shall be based upon approval limits
or the most restrictive capacity information.
Timing of Additional Applications
2. Applications for New or Increased Withdrawals, Consumptive
Uses or Exceptions shall be considered cumulatively within ten years
of any application.
Change of Ownership
2. The change of ownership of any entity for which a Party
previously issued an approval shall not require Regional Review,
provided the facts, conditions or other criteria upon which that
approval was based have not changed.
Groundwater
2. The Basin surface Water divide shall be used to define the
Basin groundwater divide.
Withdrawal systems
2. The total volume of surface Water and groundwater resources
that supply a common distribution system shall determine the volume of
a Withdrawal, Consumptive Use or Exception.
Connecting Channels
2. The watershed of each Great Lake shall include its upstream
and downstream connecting channels.
Transmission in Water Lines
2. Transmission of Water within a line that extends outside the
Basin as it conveys Water from one point to another within the Basin
shall not be considered a Diversion if none of the Water is used
outside the Basin.
Hydrologic Units
2. The Lake Michigan and Lake Huron watersheds are considered to
be a single hydrologic unit and watershed.
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Bulk Water Transfer
9.A Proposal to Withdraw Water and to remove it from the Basin in any
container greater than 5.7 gallons (20 litres) shall be considered to
be a Proposal for a Diversion. A Proposal to Withdraw Water and to
package it within the Basin for human consumption in containers 5.7
gallons (20 litres) or less shall be considered to be a Proposal for a
Consumptive Use.
U. S. Supreme Court Decree: Wisconsin et al. v. Illinois et al.
9.Notwithstanding any terms of this Agreement to the contrary, with
the exception of Paragraph 14 of this Article, current, New or
Increased Withdrawals, Consumptive Uses and Diversions of Basin Water
by the State of Illinois shall be governed by the terms of the United
States Supreme Court decree in Wisconsin et al. v. Illinois et al. and
shall not be subject to the terms of this Agreement nor any rules or
regulations promulgated pursuant to this Agreement. This means that,
with the exception of Paragraph 14 of this Article, for purposes of
this Agreement, current, New or Increased Withdrawals, Consumptive
Uses and Diversions of Basin Water within the State of Illinois shall
be allowed unless prohibited by the terms of the United States Supreme
Court decree inWisconsin et al. v. Illinois et al.
10.The Parties acknowledge that the United States Supreme Court decree
inWisconsin et al. v. Illinois et al. shall continue in full force and
effect, that this Agreement shall not modify any terms thereof, and
that this Agreement shall grant the parties no additional rights,
obligations, remedies or defenses thereto. The Parties specifically
acknowledge that this Agreement shall not prohibit or limit the State
of Illinois in any manner from seeking additional Basin Water as
allowed under the terms of the United States Supreme Court decree in
Wisconsin et al. v. Illinois et al., any other party from objecting to
any request by the State of Illinois for additional Basin Water under
the terms of said decree, or any party from seeking any other type of
modification to said decree. If an application is made by any party to
the Supreme Court of the United States to modify said decree, the
Parties to this Agreement who are also parties to the decree shall
seek formal input from the Canadian Provinces of Ontario and Quebec,
with respect to the proposed modification, use best efforts to
facilitate the appropriate participation of the Provinces in the
proceedings to modify the decree, and shall not unreasonably impede or
restrict such participation.
11.With the exception of Paragraph 14 of this Article, because
current, New or Increased Withdrawals, Consumptive Uses and Diversions
of Basin Water by the State of Illinois are not subject to the terms
of this Agreement, the State of Illinois is prohibited from using any
term of this Agreement, including Article 201, to seek New or
Increased Withdrawals, Consumptive Uses or Diversions of Basin Water.
12.
With the exception of Paragraph 14 of this Article, Articles 200, 201,
202, 203, 204, 205, 206 (first sentence only), 207 (Paragraphs 1, 2,
3, 5 and 9 only), 208 and 210 of this Agreement all relate to current,
New or Increased Withdrawals, Consumptive Uses and Diversions of Basin
Water and, therefore, do not apply to the State of Illinois. All other
provisions of this Agreement not listed in the preceding sentence
shall apply to the State of Illinois, including the Water Conservation
Programs provision of Article 303.
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14. In the event of a Proposal for a Diversion of Basin Water for use
outside the territorial boundaries of the Parties to this Agreement,
decisions by the State of Illinois regarding such a Proposal would be
subject to all terms of this Agreement, except Paragraphs 10, 12 and
13 of this Article.
ARTICLE 208
EXEMPTIONS FROM THE AGREEMENT
This Agreement does not apply to Withdrawals of Basin Water for the
following purposes:
1. Supply of vehicles, including vessels and aircraft, whether
for the needs of the persons or animals being transported or for
ballast or other needs related to the operation of vehicles; or,
2.
Use in a non-commercial project on a short-term basis for
firefighting or humanitarian purposes.
ARTICLE 209
AMENDMENTS TO THE STANDARD AND MANUAL
1.The Standard and Manual may be amended periodically according to the
rules in this Agreement to reflect advancements in science,
information and knowledge.
2.
The Parties shall co-ordinate the collection and application of
scientific information to further develop a mechanism by which
individual and Cumulative Impacts of Water Withdrawals may be
assessed.
3.
The Parties shall collectively conduct, on a Great Lake and St.
Lawrence River watershed basis, a periodic assessment of the
Cumulative Impacts of Withdrawals, Diversions and Consumptive Uses
from the Waters of the Basin. The assessment of the Cumulative Impacts
shall be done upon the earlier of:
a.Every 5 years;
b.
Each time the incremental losses to the Basin reach 50,000,000 gallons
(190,000,000 litres) per day average in any 90-day period in excess of
the quantity at the time of the last assessment; or,
c.
At the request of one or more of the Parties.
4.The assessment of Cumulative Impacts shall form a basis for the
review of the Standard and the Manual and their application. This
assessment shall:
a. Utilize the most current and appropriate guidelines for such a
review, which may include but not be limited to Council on
Environmental Quality and Environment Canada guidelines;
b.
Take climate change fully into account;
c. Consider precautionary principles and approaches; and,
d.
Include the evaluation of Article 201 concerning Exceptions.
Based on the results of this assessment, the provisions in
that Article may be maintained, made more restrictive or
withdrawn.
ARTICLE 210
JUDICIAL REVIEW
The Parties shall seek to adopt and implement Measures to permit a
Party to, in an Originating Party's court of competent jurisdiction,
seek judicial review of a decision of
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the Originating Party with respect to a Withdrawal, Consumptive Use or
Exception if that decision is, according to this Agreement, subject to
the Standard.
CHAPTER 3 PROGRAMS
ARTICLE 300
WATER MANAGEMENT PROGRAMS
1. The Parties shall seek to implement programs to protect,
conserve, restore and improve the Waters and Water Dependent Natural
Resources of the Basin.
2.
Each Party shall submit a report to the Regional Body,
detailing the Water management programs that implement this
Agreement in their jurisdiction.
3.
The Regional Body shall forward each report to all members and shall
give the members at least 30 days to consider it.
4.
Following that period, the Regional Body shall consider the reports
submitted by each Party.
5.
The Regional Body shall issue a Declaration of Finding on whether the
programs in place in each Party:
a. Meet or exceed the requirements of this Agreement;
b. Do not meet the requirements of this Agreement; or,
c. Would meet the requirements if certain modifications were
made.
6. Every year each Party shall give the Regional Body a report
setting out the changes made that year to the Party's Water management
programs.
7.
The Regional Body shall distribute the annual reports to its members.
8.
Any Party may ask the Regional Body to issue a Declaration of
Finding respecting the Water management programs of any of the
Parties, including themselves, to determine whether the
programs,
a. Meet or exceed the requirements of this Agreement.
b. Do not meet the requirements of this Agreement.
c. Would meet the requirements if certain modifications were
made.
ARTICLE 301
INFORMATION
1.The Parties shall annually gather and share accurate and comparable
information on all Withdrawals in excess of 100,000 gallons per day
(379,000 litres per day) or greater average in any 30-day period
(including Consumptive Uses) and all Diversions, including all
Exceptions.
2.
The Parties shall report this information to a Great Lakes water use
data base repository and it shall be available to the public.
3.
Each Party shall require users to report their monthly Withdrawals,
Consumptive Uses and Diversions on an annual basis.
4.
Information gathered shall be used to improve: scientific
understanding of the Waters of the Basin; the impacts of Withdrawals
from various locations and Water sources on the Great Lakes Basin
Ecosystem; understanding of the role of groundwater; and, to clarify
what groundwater forms part of the Waters of the Basin.
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ARTICLE 302
AVAILABILITY OF APPLICATIONS AND RECORD OF DECISIONS
1.Each Party shall seek to make publicly available all Applications it
receives that are subject to management and regulation under this
Agreement.
2.
Each Party shall seek to make publicly available the record of
decision including comments, objections and responses.
ARTICLE 303
WATER CONSERVATION PROGRAMS
1.The Parties commit to develop and implement Water conservation
programs that, collectively, will ensure improvement of the Waters and
Water Dependent Natural Resources; protection of the integrity of the
Great Lakes Ecosystem; and, specifically, will retain and restore the
quantity of surface Water and groundwater in the Basin. Conservation
programs need to anticipate new demands and the potential impacts of
cumulative effects and climate change.
2.The Parties commit to reduce demand for Water wherever feasible and
to improve the efficiency of use by all users and reduce losses and
waste of Water.
3.
Conservation shall be achieved by each Party through demand and
supply-side Measures or incentives that are Environmentally Sound and
Economically Feasible.
4.
The Parties commit to promote and address conservation through:
a.Development and sharing of state of the art conservation
technologies and best management practices;
b.
Application of sound planning principles;
c.Development, transfer and application of science and research; and,
d.Establishment of reporting and performance standards and program
monitoring.
5.Each Party shall implement a Water conservation program for all,
including existing, Basin Water users.
CHAPTER FOUR
GREAT LAKES WATER RESOURCES REGIONAL BODY
ARTICLE 400
FUNCTIONS OF THE REGIONAL BODY
1.The Great Lakes Water Resources Regional Body (Regional Body) is
composed of the Governor or Premier of each of the Parties, or a
person designated by each of them.
2.
The Regional Body is established to undertake the following duties and
responsibilities:
a.Ensure, in accordance with this Agreement, a formalized process with
respect to Proposals that require Regional Review and thereby provide
an opportunity to address concerns within the Basin;
b.
Declare whether or not an application meets the Standard;
c.Declare whether a Party's programs meet the requirements of this
Agreement;
d.
Facilitate the development of consensus and the resolution of disputes
on matters arising under this Agreement;
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e.Monitor and report on the implementation of this Agreement by the
Parties, including: data collection; the implementation of each
Party's program to manage and regulate Withdrawals, Consumptive Uses
and Diversions; promotion of Water conservation; and, the assessment
of Cumulative Impacts;
f.
Periodically review the Standard and the Manual and their application
including new scientific information relating to groundwater,
g.
Propose amendments to this Agreement; and,
h.Perform any other functions or duties necessary to implement this
Agreement.
ARTICLE 401
ORGANIZATION AND PROCEDURES OF THE REGIONAL BODY
1.The Regional Body may establish its own administrative practices and
procedures.
2.The Regional Body may create a secretariat by the unanimous consent
of its
members.
1.The Regional Body shall meet:
a.At least once annually; and,
b.At any other time at the call of the Chair or at the request of two
or more Parties.
4.The members shall appoint a Chair and Vice Chair through the
following process:
a.For the first year, the Chair and Vice Chair shall be members
elected by a vote of
the members.
a.Each subsequent year, until all members have served, the Vice Chair
shall be
chosen by drawing lots from amongst those members who have not yet
served.
a.Each member shall serve as Chair immediately after having served as
Vice Chair.
b.Each member shall serve as Vice Chair and as Chair, each for one
year.
c.Once all members have served as Vice Chair and Chair, the original
order of
serving shall be repeated.
5.In the event that an Application for Regional Review is from the
Chair's State or Province, the role of the Chair shall be filled by
the Vice Chair or another member.
6.
Each Party shall bear an equitable share of the costs of the Regional
Body to a maximum amount per annum that is agreed upon each year by
the Parties.
7.
The Parties shall support the Regional Body using existing agency
staff and facilities to the greatest extent possible and are
encouraged to make additional resources available though partnerships
and co-operative arrangements with government agencies, public or
private entities, individuals or academic institutions.
8.
The Regional Body shall keep a complete public record of documents
provided to it or generated by it, including but not limited to:
a.Proposals about which it is notified;
b.Applications, Technical Reviews and comments provided by the public;
c.
Comments or objections made in respect of a Proposal by members of the
Regional Body;
d.
Declarations of Finding;
e.Materials in respect of dispute resolution; and,
f.Amendments to the Manual agreed to by the Parties.
9.Public access to documents is recognized to be subject to
confidentiality obligations set out in this Agreement.
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10.To the greatest extent possible, the Regional Body shall conduct
public participation and Regional Review concurrently and jointly with
similar processes under the Compact and in the Originating Party's
jurisdiction.
11.
The Parties recognize the importance and necessity of public
participation in promoting management of the Water resources of the
Basin. Consequently, meetings of the Regional Body, at which official
action is to be taken, shall be open to the public except when the
Regional Body is meeting in executive session.
12.The minutes of the Regional Body shall be a public record.
CHAPTER 5
REGIONAL REVIEW
ARTICLE 500
REVIEW OF PROPOSALS
1.This Chapter sets out the process for Regional Review.
2.Regional Review provides the Parties an opportunity to address
concerns with respect to a Proposal.
3.
Unless the Applicant or the Originating Party otherwise requests, the
Regional Body shall meet to consider a Proposal no later than 90 days
after notice under Article 501 of such Proposal is received from the
Originating Party.
ARTICLE 501
NOTICE FROM ORIGINATING PARTY
TO THE REGIONAL BODY AND THE PUBLIC
1.The Originating Party shall determine if an Application is subject
to Regional Review.
2.
If so, the Originating Party shall provide timely notice to the
Regional Body, the Parties to this Agreement, and the public.
3.
Such notice shall not be given unless and until all information,
documents and the Originating Party's Technical Review needed to
evaluate whether the Proposal meets the Standard have been provided.
ARTICLE 502
OTHER NOTICE
1.An Originating Party may:
a.Provide notice to the Regional Body of an Application, even if
notification is not required under this Agreement; or,
b.
Request Regional Review of an application, even if Regional Review is
not required under this Agreement.
2.A majority of the members of the Regional Body may request Regional
Review of a regionally significant or potentially precedent setting
Proposal.
3.
Any such Regional Review shall be undertaken only after consulting the
Applicant.
4.An Originating Party may provide preliminary notice of a potential
Application.
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ARTICLE 503
PUBLIC PARTICIPATION
1.To ensure adequate public participation, the Regional Body shall
adopt procedures for the review of Proposals that are subject to
Regional Review in accordance with this Article.
2.
The Regional Body shall provide notice to the public of a Proposal
undergoing Regional Review. Such notice shall indicate that the public
has an opportunity to comment in writing to the Regional Body on
whether the Proposal meets the Standard.
3.
The Regional Body shall hold a public meeting in the State or Province
of the
Originating Party in order to receive public comment on the issue of
whether the
Proposal under consideration meets the Standard.
1.The Regional Body shall consider the comments received before
issuing a
Declaration of Finding.
1.The Regional Body shall forward the comments it receives to the
Originating Party.
ARTICLE 504
TRIBES AND FIRST NATIONS CONSULTATION
1.In respect of a Proposal, appropriate consultation shall occur with
Tribes or First Nations in the Originating Party in the manner
suitable to the individual Proposal and the laws and policies of the
Originating Party.
2.
The Regional Body shall provide notice to the Tribes and First Nations
within the Basin of a Proposal undergoing Regional Review. Such notice
shall provide an opportunity to comment in writing to the Regional
Body on whether the Proposal meets the Standard.
3.
The notice from the Regional Body shall inform the Tribes and First
Nations of public meetings and invite them to attend.
4.
The Regional Body shall forward the comments that it receives under
this Article to
the Originating Party for its consideration before issuing a
Declaration of Finding.
1.The Regional Body shall consider the comments that it receives under
this Article
before issuing a Declaration of Finding.
ARTICLE 505
TECHNICAL REVIEW
Originating Party's Technical Review
1.The Originating Party shall provide the Regional Body with its
Technical Review of the Proposal under consideration.
2.
The Technical Review shall thoroughly analyze the Proposal and provide
an evaluation of the Proposal sufficient for a determination of
whether the Proposal meets the Standard.
Independent Technical Review
1.Any Party may undertake an independent Technical Review of a
Proposal and the Originating Party shall assist by providing
additional information as may be required.
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4.At the request of the majority of its members, the Regional Body
shall make such arrangements as it considers appropriate for an
independent Technical Review of a Proposal.
5.
All Parties shall exercise their best efforts to ensure that a
Technical Review undertaken under paragraphs 3 or 4 does not
unnecessarily delay the decision by the Originating Party on the
Application. Unless the Applicant or the Originating Party otherwise
requests, all Technical Reviews shall be completed no later than 60
days after the date the notice of the Proposal was given to the
Regional Body.
ARTICLE 506
DECLARATION OF FINDING
1.The Regional Body shall meet to consider a Proposal within 90 days
of receiving the notice of the Proposal and the Originating Party's
Technical Review.
2.
The Regional Body, having considered the notice, the Originating
Party's Technical Review, any other independent Technical Review that
is made, any comments or objections including the analysis of comments
made by the public, Tribes and First Nations, and any other
information that is provided under this Agreement shall issue a
Declaration of Finding that the Proposal under consideration:
a.Meets the Standard;
b.Does not Meet the Standard; or,
c.Would meet the Standard if certain conditions were met.
3.An Originating Party may decline to participate in a Declaration of
Finding made by the Regional Body.
4.The Parties recognize and affirm that it is preferable for all
members of the Regional Body to agree whether the Proposal meets the
Standard.
5.
If the members of the Regional Body who participate in the Declaration
of Finding all
agree, they shall issue a written Declaration of Finding with
consensus.
3.In the event that the members cannot agree, the Regional Body shall
make every
reasonable effort to achieve consensus within 25 days.
3.Should consensus not be achieved, the Regional Body may issue a
Declaration of Finding that presents different points of view and
indicates each Party's conclusions.
4.
The Originating Party shall consider the Declaration of Finding before
it makes a decision on the Proposal.
5.
The Regional Body shall release the Declarations of Finding to the
public.
CHAPTER 6
DISPUTE RESOLUTION
ARTICLE 600
GENERAL
1.The Parties undertake to resolve any disputes under this Agreement
in a conciliatory, co-operative and harmonious manner.
2.
Where dispute resolution is required, the Parties undertake to use the
dispute resolution mechanisms provided for in this Chapter to arrive
at a mutually satisfactory resolution.
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3.The provisions of this Chapter shall not be used to dispute a
Declaration of Finding on a Proposal that is subject to Regional
Review.
4.
A Person who is not a Party to this Agreement may not seek dispute
resolution under this Agreement.
ARTICLE 601
PROCEDURE FOR DISPUTE RESOLUTION
Initial Steps
1. A Party may provide detailed written notice to another Party and to
the Regional Body of a dispute that in its opinion requires resolution
under this Chapter.
Measures to settle disputes
2. If the dispute is not resolved informally, the Chair shall initiate
the most appropriate measures to resolve the dispute. These measures
may include:
a.The appointment of a panel to hear the Parties to the dispute;
b.Consultation with experts;
c.Establishment of a working or fact-finding group; or,
d.The use of dispute resolution mechanisms such as conciliation or
mediation.
3. After resolution is attempted by one of the means suggested in
paragraph 2, recommendations shall be made in accordance with
directions given by the Chair at the time the mean was adopted. The
disputing Parties shall consider the recommendations and exercise
their best efforts to settle their dispute.
Reference to Regional Body
4. If the disputing Parties, having considered the recommendations,
fail to settle the dispute, any one of them may refer the matter to
the Regional Body. In this case, the Chair shall, in consultation with
the other members who are not involved in the dispute, direct the
Regional Body to take such further steps as he or she considers
advisable in the circumstances to resolve the dispute.
5. When those steps have been taken, the Regional Body shall issue its
recommendations regarding the resolution of the dispute.
6. The disputing Parties shall consider the recommendations and shall
exercise their best efforts to settle.
Role of the Chair
7. In the event that a dispute involves the Party of the Chair, the
role of the Chair set out in this Chapter shall be filled by the Vice
Chair or failing him or her, another member who is not a Party to the
dispute.
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CHAPTER 7
FINAL PROVISIONS
ARTICLE 700
REAFFIRMATION OF CONSTITUTIONAL POWERS AND
RESPONSIBILITIES
1. Nothing in this Agreement alters the legislative or other
authority of Parliament or of the Provincial legislatures or of the
federal Government of Canada or of the Provincial governments or the
rights of any of them with respect to the exercise of their
legislative or other authorities under the Constitution of Canada.
2. This Agreement is not intended to infringe upon the treaty
power of the United States of America, nor shall any term hereof be
construed to alter or amend any treaty or term thereof that has been
or may hereafter be executed by the United States of America.
ARTICLE 701
RELATIONSHIP TO AGREEMENTS CONCLUDED BY CANADA OR THE
UNITED STATES OF AMERICA
1.Nothing in this Agreement is intended to provide nor shall be
construed to provide, directly or indirectly, to any Person any right,
claim or remedy under any international Agreement or treaty.
2.
Nothing in this Agreement is intended to affect the application of the
Boundary Waters Treaty of 1909 whose requirements with respect to
boundary waters continue to apply in addition to the requirements of
this Agreement.
ARTICLE 702
RELATIONSHIP TO TRIBES AND FIRST NATIONS
1. Nothing in this Agreement is intended to abrogate or derogate
from treaty rights or rights held by any Tribe recognized by the
federal government of the United States based upon its status as a
Tribe recognized by the federal government of the United States.
2.
Nothing in this Agreement is intended to abrogate or derogate
from the protection provided for the existing aboriginal or
treaty rights of aboriginal peoples in Ontario and Quebec as
recognized and affirmed by section 35 of the Constitution Act,
1982.
ARTICLE 703
RELATIONSHIP TO OTHER AGREEMENTS AMONG THE PARTIES
1. The Parties assert that by this Agreement they are fulfilling
their existing commitments with respect to each other under the Great
Lakes Charter and the Great Lakes Charter Annex.
2.
The obligations of this Agreement shall be co-ordinated with
any obligations set out in other environmental and
conservation agreements between or among the Parties.
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ARTICLE 704
CONFIDENTIALITY
1. Nothing in this Agreement requires a Party to breach
confidentiality obligations or requirements prohibiting disclosure
that it has under its own laws, to compromise security or a person's
commercially sensitive or proprietary information.
2. A Party may take steps, including but not limited to deletion
and redaction, deemed necessary to protect any confidential,
proprietary or commercially sensitive information when distributing
information to other Parties. The Party shall summarize or paraphrase
any such information in a manner sufficient for the Regional Body to
exercise its authorities contained in this Agreement.
ARTICLE 705
MEASURES SUBJECT TO TRANSITIONAL PROVISIONS
Each Party shall, from the date of execution of this Agreement,
exercise its best efforts to refrain from taking any action that would
defeat the objectives of this Agreement.
ARTICLE 706
APPENDIX
The Appendix to this Agreement constitutes an integral part of the
Agreement.
ARTICLE 707
AMENDMENTS
1.The Parties may agree in writing to amend this Agreement.
2.An amendment to this Agreement requires the consent of all Parties
to the Agreement.
3.
When so agreed, and approved in accordance with the applicable legal
procedures of each Party, an amendment shall constitute an integral
part of this Agreement from the date of its entry into force.
4. Despite paragraph 2, the Manual may be amended on the
unanimous written consent of the members of the Regional Body.
ARTICLE 708
WITHDRAWAL AND TERMINATION PROCEDURE
1.Twelve months after it gives written notice to all other Parties, a
Party may withdraw from this Agreement.
2.
If a Party withdraws, the Agreement shall remain in force among the
remaining Parties.
3.
This Agreement shall be terminated when all Parties, or all remaining
Parties, agree in writing.
ARTICLE 709
LANGUAGE
This Agreement has been made and executed in English and French and
both versions are equally authoritative.
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ARTICLE 710
ENTRY INTO FORCE
The Parties intend to implement this Agreement as expeditiously as
possible.
Parts of this Agreement come into force at different times.
1. On the day the Agreement is signed by all Parties:
a. Preamble.
b. Chapter 1 (General Provisions).
c. Article 202 (Implementation of the Standard).
d. Article 208 (Exemptions from the Agreement).
e. Chapter 4 (Great Lakes Water Resources Regional Body).
f. Chapter 6 (Dispute Resolution).
g. Chapter 7 (Final Provisions).
2. 60 days after the last Party has notified the others that it
has completed the Measures necessary to implement the following parts
of this Agreement:
a. Article 200, paragraphs 1 and 2 (Prohibition of Diversions and
Management of Exceptions).
b.
Article 201 (Exceptions to Prohibition of Diversions).
c. Article 203 (The Decision-Making Standard).
d. Article 204 (Proposals Subject to Regional Review)
e. Article 206 (Procedures Manual)
f. Article 207, except paragraph 1 (Determination of whether the
Standard Applies)
g.
Article 209 (Amendments to the Standard and Manual and
Periodic Assessment of Cumulative Impacts)
h.
Article 210 (Judicial Review)
i. Chapter 5 (Regional Review).
3. 1 year after the date paragraph 2 of this Article comes into
force:
a. Article 207, paragraph 1 (Baseline for Determining New or Increased
Diversions, Consumptive Uses or Withdrawals.)
3. 5 years after the date paragraph 2 of this Article comes into
force:
a. Article 303 (Water Conservation Programs)
3. 10 years after the date paragraph 2 of this Article comes into
force or 60 days after the last Party has notified the others that it
has completed the Measure necessary to implement it, whichever is
first:
a. Article 200, paragraph 3 (Management of Withdrawals and
Consumptive Uses)
b. Article 205 (Proposals Subject to Management and Regulation).
c. Chapter 3, except Article 303 (Water Management Programs and
Information).
6. Except as otherwise set out in this Agreement, 60 days
following the date that the last Party has notified the others that it
has completed the necessary legal procedures, any remaining parts of
this Agreement shall come into force.
7. The terms, agreements, and review processes contained
in the Great Lakes Charter of 1985 ("Charter") shall remain in full
force and effect unless and until the Parties to the Charter certify
in writing that it has been replaced by the terms of this Agreement.
Until the coming into force of Chapter 5 of this Agreement, the
Regional Body as described in Chapter 4 shall be used for all prior
notice and consultation activities as described in the Charter.
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Signed this X day of 2005.
Governor of IllinoisGovernor of Indiana
Governor of MichiganGovernor of Minnesota
Governor of New YorkGovernor of Ohio
Premier of OntarioGovernor of Pennsylvania
Premier of QuebecGovernor of Wisconsin
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APPENDIX 1
PROCEDURES MANUAL
Decision Making Standard Procedures Manual Table of Contents
Introduction of Procedures Manual Purpose and Use
Part 1: Preparation of an Application and Review of a Proposal to
Withdraw Water
1. Proposal Review Guidance
A) Efficient Use and Conservation of Existing Water Supplies
B) Quantities that are Considered Reasonable
C) Return Flow
D) No Significant Individual and Cumulative Impacts
E) Environmentally Sound and Economically Feasible Water
Conservation Measures
F) Compliance with Applicable Laws
G)
No Reasonable Water Supply Alternative (only if the Applicant is
seeking an Exception)
2. Application Information
A) Who Applies and Who Bears the Regulatory Burden
B) Legal Arrangements
C) Party Review
D) Timing of Additional Applications
E) Other Requirements
3. Elements of an Application
A) Applicant Information
B) Purpose of Withdrawal
C) Source of Water
D) Point of Taking/Pumping Site
E) Means of Taking and Rate
F) Method of Measurement
G) Point of Measurement
H) Schedule of Withdrawal
I) Total Amount of Use
J) Return Flow
K)
Statement of Justification Analysis of Alternative Sources
(information necessary only if the Applicant is seeking an Exception)
L)
Environmentally Sound and Economically Feasible Water Conservation
Measures and Status of Implementation
M)
Assessment of Impacts
N) Map or Air Photo
O) Signature
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Part 2: Review of Party Water Management Programs
4. Party Management and Information
A)Submission and Review
B)Components of Party Program Report
C)Water Conservation Programs
INTRODUCTION OF PROCEDURES MANUAL PURPOSE AND USE This Manual
addresses:
Part 1: Preparation of an Application and Review of a Proposal to
Withdraw Water
?Proposal review guidance (section 1)
?The Proposal review guidance applies to Proposals subject to Regional
Review and Proposals reviewed only by the Originating Party. Certain
of the program requirements for New or Increased Withdrawals shall be
phased in by the Parties over time.
?A discussion of Application information (Section 2)
?Elements of an Application (Section 3)
Part 2: Review of Party Water Management Programs
?The submission and review/comment process.
?The components of the Party program report.
?Guidance to Parties on Water conservation.
?Information collection and management.
PART 1: PREPARATION OF AN APPLICATION AND REVIEW OF A PROPOSAL TO
WITHDRAW WATER
1. PROPOSAL REVIEW GUIDANCE
A)Efficient Use and Conservation of Existing Water Supplies
Description of intent
The purpose of this requirement is to ensure that the need for a New
or Increased Withdrawal of Great Lakes Basin Water cannot be
reasonably avoided through the efficient use and conservation of
existing water supplies available to the Applicant.
Application Requirements
Applications shall include a narrative description of the need for the
proposed New or Increased Withdrawal. This description should include
an analysis of the efficiency of current water Withdrawals, including
the application of Environmentally Sound and Economically Feasible
Water Conservation Measures as outlined in Section 1 .E. of this
Manual.
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Criteria for Decisions
Water conservation and efficient use of existing water supplies must
be an alternative that is pursued first to minimize or eliminate the
need for the New or Increased Withdrawal. A clear demonstration must
be made that the requirement for additional Great Lakes Basin Water
cannot be minimized or eliminated through the application of
Environmentally Sound and Economically Feasible Water Conservation
Measures as outlined in Section 1.E. of this Manual.
B) Quantities that are Considered Reasonable
Description on Intent
The purpose of this requirement is to ensure that the Withdrawal of
Great Lakes Basin Water shall be limited to quantities that are
considered reasonable to meet the requirements of the intended use.
Application Requirements
The Applicant must estimate the highest 90-day average use for the
period for which the approval is being sought. The Application must
include a Water use plan. For a public water supply system, publicly
or privately operated, the plan must include:
? A description and map of the service area at the time of the
Application and
projected for up to twenty years or for the period for which the
approval is being
sought.
? Water use and population projections at the time of the
application and projected for the next five, ten and twenty years.
Population projections should be credible and the entity conducting
the projections identified. Water use must be presented in terms of
maximum use for any 90-day period for a given year. Water use must
also be presented in terms of annual average gallons or litres per
day.
? A description of the capacity of the Withdrawal, treatment and
distribution portions of the system.
? An assessment of the water use savings of current and proposed
water conservation programs.
Applications for other uses, such as industrial or agricultural, must
include a plan that projects Water use at the time of application and
projected for up to twenty years or for the period for which the
approval is being sought. Water use must be presented in terms of
maximum 90-day average use for a given year and in terms of annual
average gallons per day.
Criteria for Decisions
In determining if a Proposal has successfully met the requirements of
this Standard provision, the Proposal shall be evaluated in terms of
how realistic and reasonable the quantity of the proposed Water
Withdrawal is to meet the requirements of the intended purposes for
the Withdrawal. The review shall be conducted in concert with the
review of the Proposal's Environmentally Sound and Economically
Feasible Water Conservation Measures to determine how effective it is
in minimizing the quantity of the Withdrawal or Consumptive Use.
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The proposed Water use projections shall be evaluated upon the
following criteria:
? The presentation of current use information including
proposed Withdrawal and/or Consumptive Use;
? The existence of a Water use plan with credible multi-year use
projections; and,
? The potential effectiveness of current and proposed Water
conservation programs in minimizing the Withdrawal and/or Consumptive
Use of Water.
C) Return Flow
Description of Intent
The intent of the Return Flow requirement is to ensure that all of the
Water Withdrawn from the Great Lakes Basin is returned to the Source
Watershed, less an allowance for Consumptive Use, in order to support
the ecological health of the system and for further use. It is
recognized that Consumptive Uses will occur and the amount of
Consumptive Use will differ depending of the use of the Water. The
desire is that Consumptive Uses be reasonable and that the Proposal
maximizes the return of Water at a quality that meets all applicable
Water quality requirements. Except as provided for in the Agreement,
Return Flow shall be required to the Source Watershed for all New or
Increased Withdrawals subject to the Standard.
Application Requirements
Applicants must submit a description of their Return Flow program.
This program description should include:
? A description on how the Water will be returned. To the extent
the local entity that will be discharging the Return Flow is not the
Applicant for the project, agreements must be presented demonstrating
that the Return Flow will be guaranteed;
? An estimate of total Return Flow by volume and as a percentage
of Water Withdrawn;
? Location of Return Flow;
? An estimate of Consumptive Use, including historic use
information. These estimates may be presented in the form of project
engineering design plans or utilizing United States Geological Survey
(USGS) or other Consumptive Use coefficients. To the extent use
estimates are greater than "generally accepted Consumptive Use
coefficients," the Application must include a detailed explanation and
justification for projected additional Consumptive Use;
? A description of the anticipated Water quality of the Return
Flow including a description of the proposed measurement methods
(quality and quantity) and discharge location(s); and,
? A certification that the Return Flow shall consist only of
Water Withdrawn from the Great Lakes Basin, except for groundwater
that may infiltrate into wastewater systems.
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Criteria for Decisions
In determining if a Proposal has successfully met the requirements for
Return Flow, the following shall be evaluated:
?The clarity and completeness of the description of the Return Flow
program, including the quantity, quality and location of the Return
Flow.
?The verification and justification of Consumptive Use estimates, by
sector, using engineering estimates or Consumptive Use coefficients.
?There is no replacement water from outside the Basin.
?The Return Flow meets all applicable water quality Standards.
?Water that is returned to the Source Watershed via non-point sources
(e.g. percolation, infiltration, septic system seepage) shall be
considered part of Return Flow.
In reviewing Consumptive Use estimates, commonly used coefficients
shall be used as a benchmark. It is understood that specific use
situations vary and that in some cases higher use amounts may be
justified. It is also understood that research will continue and that
Consumptive Use information will improve. As of now, the Great Lakes
Commission Survey, Spring 2002, entitled, "Consumptive Use
Coefficients By Water Use Category Among Great Lakes Jurisdictions and
USGS" is one benchmark evaluation tool for the listed water use
categories, recognizing that coefficients will be updated periodically
to reflect advancements in conservation practices. Recommendations
from the International Joint Commission's February 2000 report shall
also be considered, as appropriate, in the context of evaluating the
adequacy of the elements of the Proposal relating to Return Flow.
D)No Significant Individual or Cumulative Impacts
Description of Intent
The intent of this Standard provision is to ensure that New or
Increased Withdrawals result in No Significant Adverse Individual or
Cumulative Impacts to the Water and Water Dependent Resources of the
Great Lakes Basin. This provision is central to the Parties'
commitment to responsible resource protection and management.
Application Requirements
Applications must be submitted with detailed information related to
the proposed project including the location of the New or Increased
Withdrawal and Return Flow.
The Proposal should include the following information:
?Source and location of the Withdrawal and Return Flow;
?A description of baseline conditions regarding hydrologic flow, water
quality and habitat;
?A projected Withdrawal schedule including peak 30-day demand over the
90-day averaging period;
?Anticipated changes in Water quality and Water dependent natural
resources;
?A description of all mitigation measures that will be implemented to
prevent or eliminate significant impacts; and,
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?A statement of how the Proposal would relate to other existing
Withdrawals, Diversions and Consumptive Uses for purposes of enabling
the Parties to collectively evaluate Cumulative Impacts from this
Proposal. The Applicant shall use data and analyses on Cumulative
Impacts that are available from the Parties.
Criteria for Decisions
In determining whether a Proposal has the potential for significant
impacts, the Parties shall consider the impacts that may be reasonably
expected to occur from the Proposal based on consideration of the
following criteria and factors:
? The completeness of baseline information presented;
? Location, type, extent, scale and duration of impacts;
? The mitigation measures proposed, if any;
? Potential cumulative effects of related or anticipated future
projects (supply and demand analysis), including the potential for
precedent-setting consequences;
? The geographic and temporal scale of potential impacts; and,
? Individual impacts will be evaluated in the context of
Cumulative Impacts. Where watershed plans exist, Applicants shall
discuss impacts based upon these plans. Potential impacts on other
users will be evaluated.
A Water Withdrawal Proposal will be considered to have a significant
ecological impact if there is a significant change to any of the
following parameters:
Physical Criteria
? Measurable change to the pre-Proposal range of variability of
the hydrologic regime
? Degradation of structural habitat
? Disruption of pre-Proposal connections between and among
habitats
? Disruption of pre-Proposal temperature regime of the
hydrologic system
? Significant/measurable impacts to existing Water uses
Chemical Criteria
? Disruption of natural productivity of the ecosystem
? Introduction of potentially harmful toxins, contaminants and
excessive nutrients
? Disruption of the hydrologic system's ability to process
toxins, contaminants, and nutrients
Biological Criteria
? Decline in population levels or health of native species
? Introduction of non-native species
? Disruption of biological interactions such as predation and
competition
? Introduction of harmful microorganisms and no elevation of
microorganisms to harmful level
? Impact on human health
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Compliance with the Originating Party's environmental regulatory
requirements (water and air) could contribute to a demonstration of
the lack of significant ecological impact. In some cases, these
processes require a showing of no impact. In these cases, such a
finding by an Originating Party could meet the requirements of this
section.
E)Environmentally Sound and Economically Feasible Water Conservation
Measures
Description of Intent
The purpose of this Standard provision is to encourage efficient use
through demand reduction and supply-side Environmentally Sound and
Economically Feasible Water Conservation Measures and incentives.
Environmentally Sound and Economically Feasible Water Conservation
Measures can be grouped into two general categories: 1) "hardware"
devices or equipment; and, 2) behavior or management practices.
Examples of Water Conservation Measures for different water use
sectors are provided in Table 1 from the Handbook of Water Use and
Conservation (Vickers, 2001). Conservation incentives are incentives
that motivate water users to implement Environmentally Sound and
Economically Feasible Water Conservation Measures. They can be
classified into three categories: 1) educational, 2) financial, and 3)
regulatory. Examples of conservation incentives are presented in Table
2 from the Handbook of Water Use and Conservation (Vickers, 2001).
The Decision Making Standard includes a strong requirement regarding
water conservation. All Proposals for New or Increased Withdrawals of
Great Lakes Basin Water shall incorporate Environmentally Sound and
Economically Feasible Water Conservation Measures to minimize Water
Withdrawals or Consumptive Use.
Table 1. Types of Water Conservation Measures (Source: The Handbook of
Water Use and Conservation (Vickers, 2001, p. 6) and the Great Lakes
Commission's Report Water Resources Management Decision Support System
for the Great Lakes-St. Lawrence River (May, 2003)).
Water Use
Sector
Hardware/Technology
Behavior/Management Practices
Residential and
Domestic
Low-volume toilets and urinals
Waterless and composting toilets
and urinals
Low-flow showerheads and
faucets
Water-efficient appliances such as
clothes washers and dishwashers
Shut off unnecessary flows from
faucets
Restrict outdoor water use
Use water-efficient practices for
clothes washers and dishwashers
(full loads, no pre-rinse, wash
cycles)
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Water Use
Sector
Hardware/Technology
Behavior/Management Practices
Landscapes
Native and drought-tolerant turf
Water less frequently (schedule
and plants
during early or late hours)
Drip irrigation
Soil improvements and apply
Automatic shut-off hoses
appropriate mulches
Rain sensors
Use water-efficient landscape
maintenance practices
Cooling towers with recirculated
Shut off unused valves
Industrial,
water
Use water-efficient operational
Commercial,
Reuse process water
practices
and
Institutional
Facilities
Leak detection and repair
Agriculture
Low-energy precision application
Use weather-controlled irrigation
of irrigation water
systems
Canal lining
Regular maintenance of irrigation
Tailwater recovery
systems
Laser leveling
Use water-efficient cultivation
Drip irrigation
practices
Water Utilities
Distribution system leak detection
Regularly service and adjust
and repair
system valves and connections
Hydrant capping
Pressure management to reduce
volume of water used
Table 2. Types of Conservation Incentives (Source: The Handbook of
Water Use and Conservation (Vickers, 2001, p. 7) and the Great Lakes
Commission's Report Water Resources Management Decision Support System
for the Great Lakes-St. Lawrence River (May, 2003)).
Type of Conservation
Incentive
Examples
Educational
Direct-mail literature, television and radio advertisements,
media coverage, demonstration gardens and projects, school
education programs, conservation checklists developed for
specific industries, local workshops and training programs for
specialized users
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Financial
Bill credits, rebates, conservation pricing/rate structures
Regulatory
Water-efficient policies, laws and plumbing codes for water-
efficient fixtures and appliances, Standards for landscape
design, irrigation scheduling, penalties for outdoor water waste,
pollution prevention requirements
Application Requirements
All Proposals shall provide a detailed description of the
Environmentally Sound and Economically Feasible Water Conservation
Measures that have been and will be employed in the project. This must
include water conservation goals as described below.
In addition to guidance provided by a Party's water conservation
program, descriptions of an Applicant's Environmentally Sound and
Economically Feasible Water Conservation Measures may include the
elements outlined in the planning steps below. The planning steps,
which are adapted from the Handbook of Water Use and Conservation
(Vickers, 2001) and the USEPA's Water Conservation Plan Guidelines for
Water systems (August, 1998), are meant as guidance for all water use
sectors.
1. Identify Conservation Goals
? Establish Water use reduction goals (e.g. percent or volume
per day).
? Determine the timeframe of the Water conservation program for
existing and proposed Withdrawals.
? Description of community involvement in goals-development
process.
2. Develop a Water-Use Profile and Forecast
? Identify existing Water supply sources, Water use (average and
peak use/demand), total Withdrawal and Consumptive Use.
? For Water systems, agricultural water districts, and
industry, describe production characteristics of existing facilities
if any.
? For irrigation and other agricultural uses, the plan should
demonstrate that systems are properly designed for soil
characteristics, topography, climatic conditions, and crop types.
Information should include:
? Soil types and percentage of each
? Purpose of irrigation (e.g. upland crops corn, soybeans,
fruit, etc.); golf course, sod, greenhouse etc.)
? Acreage under each crop and total acres irrigated
? Monthly irrigation schedule
? Irrigation method(s) to be used
? Forecast anticipated future Water use/demand and costs
associated with infrastructure changes (expansion, improvements or new
facilities).
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DRAFT JUNE 30, 2005
3. Identify and Evaluate Environmentally Sound and Economically
Feasible Water Conservation Measures
?Review of Water conservation measures and incentives that have been
implemented if any.
?Identify other Water conservation measures that save Water and
identify conservation incentives that would motivate Water users to
implement Water measures (see Tables 1 & 2 for examples), including
consideration of generally accepted management practices and
principles for the appropriate water use sector.
?Develop a matrix of Environmentally Sound and Economically Feasible
Water Conservation Measures and incentives that can be considered
options.
?Evaluate measures in terms of the following:
? Potential Water savings (i.e. reducing Water loss and minimizing
the need for a Withdrawal or increased Withdrawal to the maximum
extent possible)
?Estimate the short-term, long-term, average-day, and peak-day Water
savings that can be achieved by each measure as well as the total
(and/or
per capita) Consumptive Use reduced.
? Benefits and costs
? For all Water uses, consider reduced need for new or
additional Water supplies, reduced operation and maintenance costs,
and environmental preservation. For water systems or agricultural
water districts, consider deferred, downsized or eliminated new
facilities for water systems and customer benefits.
? Estimate conservation program costs including implementation
and monitoring costs.
? Determine cost-effectiveness of measures based on benefits and
costs over the life of the program.
? Applicable laws, regulations, and standards
? Identify any short-term or long-term obstacles (e.g. socio-
economic, legal, etc.) to implementation of the measures.
4. Select Environmentally Sound and Economically Feasible Water
Conservation Measures
? Identify quantitative criteria for selecting measures and
associated program incentives. For example, identify the cost-
effectiveness of Environmentally Sound and Economically Feasible Water
Conservation Measures in terms of the avoidance of capital costs or
through potential Water savings such as reducing Water loss and
minimizing the need for a Withdrawal or increased Withdrawal.
? Identify qualitative criteria for selecting Environmentally
Sound and Economically Feasible Water Conservation Measures and
associated incentives, as appropriate. For example, identify the
potential ease of implementation and the relationship of alternatives
to other regulatory approvals that may be required.
? Evaluate and rank measures and incentives using quantitative
and qualitative selection criteria.
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DRAFT JUNE 30, 2005
?Justify why each measure and incentive should be selected or
rejected.
?Refine total future Water use/demand forecasts taking into account
Environmentally Sound and Economically Feasible Water Conservation
Measures
and incentives selected.
5. Implement the Conservation Plan
?Develop a strategy and timetable for implementing and monitoring the
plan's Environmentally Sound and Economically Feasible Water
Conservation Measures.
6. Monitor, Evaluate, and Revise Water Conservation Program as Needed
?Monitor and evaluate each measure's effectiveness by assessing actual
Water savings (i.e. reducing Water loss and minimizing the need for a
Withdrawal or increased Withdrawal to the maximum extent possible),
and program costs and benefits.
?If necessary, adjust the Water conservation program, based on
findings from the monitoring and evaluation process, to ensure that
Water-savings goals are met.
Criteria for Decisions
All Proposals will be evaluated on the adequacy of the Environmentally
Sound and Economically Feasible Water Conservation Measures proposed
and implemented. There must be water conservation goals to ensure
efficient use. There must be a description of how water use is
quantitatively measured (e.g. metering) to provide an accurate picture
of water demand, supply, loss and projected savings; a forecast of
anticipated future water use and demand; an identification and
analysis of alternative methods and practices; and, an implementation
and evaluation strategy.
F)COMPLIANCE WITH APPLICABLE LAWS
Description of Intent
The Applicant bears the responsibility that the proposed Withdrawal
will be in compliance with all applicable municipal, State, Provincial
and federal laws as well as regional, inter-State, inter-Provincial
and international agreements, including the Boundary Waters Treaty of
1909.
G)NO REASONABLE WATER SUPPLY ALTERNATIVE (Applicable when Applicant is
seeking an Exception)
Description of Intent
The purpose of this requirement is to ensure that there are no
reasonable alternatives available that would eliminate or diminish the
need for an Exception.
Application Requirements
Applications for the Exception shall include a narrative description
of the need. This description should include an analysis of the
efficiency of current water Withdrawals, including the application of
Environmentally Sound and Economically Feasible Water Conservation
Measures as outlined in Section 1 .E. of this Manual.
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DRAFT JUNE 30, 2005
The application shall include an analysis of water supply alternatives
available and considered to meet the new or increased need. This
analysis shall address quantity and quality (including treatability)
of alternative sources. The analysis shall describe the rationale for
not using the other considered water supply alternatives.
Criteria for Decisions
A clear demonstration of alternatives considered, the analysis
undertaken and conclusions and findings of this analysis shall be
evaluated. There must be a showing that no reasonable water supplies
are available. To determine what is reasonable, three factors will be
evaluated for alternative options, including: 1) resource protection;
2) technology; and, 3) cost.
Water conservation and efficient use of existing water supplies must
be an alternative that is pursued first to minimize or eliminate the
need for the New or Increased Withdrawalas described in Section 1 .E.
of this Manual.
3. APPLICATION INFORMATION
A) Who Applies and Who Bears the Regulatory Burden
Any Person proposing a New or Increased Withdrawal, Consumptive Use or
Exception of Great Lakes Basin Water.
B) Legal Arrangements
In some situations, the Applicant may not have complete legal
authority to carry out certain requirements. Examples could include:
1) a different entity may actually discharge Return Flow; or, 2) the
entity Withdrawing Water, if not the Applicant may be responsible for
ensuring there are no adverse impacts. In these cases, legal
arrangements, such as contracts, should be submitted with the
Application demonstrating that requirements will be met.
C) Jurisdictional Review
Applications that require Regional Review shall be submitted to the
Regional Body by the Originating Party. Prior to submitting the
Application for Regional Review, the Originating Party shall determine
that the Application is complete and meets the requirements for
Regional Review.
D) Timing of Additional Applications
For the purposes of determining whether Regional Review is required,
applications for New or Increased Withdrawals, Consumptive Uses and
Exceptions will be considered cumulatively within ten years of any
application. In other words, when the total exceeds the Regional
Review Threshold then the full amount of the Withdrawal will be
Regionally Reviewed regardless of the increment. For example, if an
Applicant has previously obtained approval for a Proposal resulting in
a Consumptive Use of 4.5 million gallons per day (17 million litres
per day) and five years later requests an
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DRAFT JUNE 30, 2005
additional 1 million gallons per day Consumptive Use (3.8 million
litres per day), the second request would trigger Regional Review. In
this case, the total amount of both actions, 5.5 million gallons per
day (20.8 million litres per day), would be subject to Regional
Review. After Regional Review, the Originating Party's denial of the
proposed incremental amount shall not negate or invalidate any
previously approved actions. If, however, the second request is after
ten years, it would be subject to Originating Party review only.
E) Other Requirements
Other federal, State/Provincial or local approvals may also be
required. Such approvals including permits are the responsibility of
the Applicant.
3. ELEMENTS OF AN APPLICATION
Section 3 is a list of categories of information that will be
necessary for an Application to be evaluated. This list is
illustrative only; each Party will use their own Application forms and
information requirements.
A) Applicant Information Name:
Mailing Address:
Phone Number:
Email Address:
B) Purpose of Withdrawal
Provide detailed written explanation of what the Water will be used
for. Uses could include, for example: public water supply,
commercial/industrial, irrigation or other. If the Water is to be used
for multiple purposes, estimate percent usage by category of use.
C) Source of Water
Applications are required for all new or increased Withdrawals,
Consumptive Uses and Exceptions as outlined in this Agreement.
The application must identify the source body of Water by type (lake,
river, stream or aquifer) and exact name. The exact location of the
Water taking should be identified. This information should include a
legal description including longitude and latitude citations.
D) Point of Taking/Pumping Site
The Application should indicate the legal entity that proposes to
Withdraw the Water. The Application should also provide a legal
description of the location of the actual Withdrawal. If the
Withdrawal is to be from multiple wells, all well locations should be
identified.
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DRAFT JUNE 30, 2005
E) Means of Taking and Rate
Specify the method to be used for taking and the rate of Withdrawal
(in gallons per minute or cubic feet per second or metric
equivalents). If multiple wells or pump sites are to be used, attach
explanation information.
F) Method of Measurement Indicate method of measurement, for
example: flow meter, timing device or other.
G)
Point of Measurement
The Application should provide a legal description of the location of
the measurement of Withdrawal and use.
H) Schedule of Withdrawal
The Application should include a monthly projection of Withdrawals by
year and information regarding whether the proposed use would be
continuous, seasonal or temporary.
I) Total Amount of Use
Expressed in millions of gallons per day or millions of litres per
day/projected maximum use for any 90-day period.
J) Return Flow See section 1. C)
K)
Statement of Justification Analysis of Alternative Sources
(information necessary only if the Applicant is seeking an Exception)
See section 1. G)
L) Environmentally Sound and Economically Feasible Water
Conservation Measures and Status of Implementation
See section 1. E)
M) Assessment of Imp acts See section 1. D)
N)
Map or Air Photo: Must be provided of the area of the Source Watershed
and area of use, as appropriate.
O)
Signature: Signature of official from applying entity.
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PART 2: REVIEW OF WATER MANAGEMENT PROGRAMS
4. PARTY MANAGEMENT AND INFORMATION
It is anticipated that the majority of New or Increased Withdrawals
from the Great Lakes Basin will be subject to the management or
regulatory programs of the individual Parties. In order to make sure
that there is consistent implementation of Water Withdrawal management
or regulatory programs, the Parties have agreed that each Party will
submit their individual Water management programs for Regional Review.
The Parties will also submit an annual report describing the
authorities and implementation of their individual program.
A)Initial Submission and Review
Each Party shall submit their Water management program to the other
Parties for Regional Review and a Declaration of Finding. This review
and Declaration of Finding process is a one-time event. The initial
submission will be one year from the effective date Article 710,
paragraph 2. After program review, the Party will submit an annual
report to the Regional Body. Reports will be submitted on October 1st
thereafter.
The individual Party program submissions shall include a narrative
description of the components of its program, including:
?The legal authority upon which the program is based, including laws,
regulations, and management programs;
?A description of the public participation requirements; and,
?The reporting, inspection and enforcement program elements.
The Regional Review of Party programs will include:
?Each Party's submission of program to other Parties;
?Thirty day submission review period; and,
?Regional Body meeting based upon evaluation of the submission of the
Jurisdictions program for a Declaration of Findings.
While the review of each Party's program occurs once, any other Party,
based upon review of the information in the annual reports may request
the Regional Body conduct an evaluation of an existing Party program
to ensure it is still operational with necessary authority. The
Regional Body may make an additional statement of findings based upon
this evaluation.
B)Components of Party Program Report
The following descriptive information shall be provided about each
Party's program in annual report submissions:
?A statement of changes to the scope of program authority and
requirements (submitted during the initial submission and updated only
as necessary). If a Party is phasing in elements of its Water
management program, a status report on their program progress shall be
submitted; and,
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DRAFT JUNE 30, 2005
?Information required in Article 301 (Information) on Withdrawals,
Consumptive Uses and Diversions, including Exceptions, and a brief
narrative description of program activities.
C)Water Conservation Programs
Each Jurisdiction will implement programs to promote Environmentally
Sound and Economically Feasible Water Conservation Measures to
minimize existing Great Lakes Basin Withdrawals, Consumptive Uses and
Diversions. These programs may include:
?Permitting and enforcement
?Technical Standards
?Reporting requirements
?Technical assistance and guidance
?Public Education